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U.S. Department of Homeland Security20 Massachusetts Ave., N.W., Rm. 3000Washington, DC 20529

u.s. Citizenshipand ImmigrationServices

File: EAC 02 025 51864 Office: VERMONT SERVICE CENTER Date: FEB 01 2008

IN RE: Petitioner:Beneficiary:

Petition: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the Immigrationand Nationality Act, 8 U.S.C. § 1101(a)(l5)(L)

IN BEHALF OF BENEFICIARY:

INSTRUCTIONS:

This is the decision of the Administrative Appeals Office in your case. All documents have been returned tothe office that originally decided your case. Any further inquiry must be made to that office.

R~i:.ertP~~fAdministrative Appeals Office

www.uscis.gov

EAC 02 025 51864Page 2

DISCUSSION: The Director, Vermont Service Center, denied the petition for a nonimmigrant visa. Thepetitioner appealed this denial to the Administrative Appeals Office (AAO). The AAO will dismiss theappeal.

The petitioner filed this nonimmigrant petition seeking to extend the employment of the beneficiary in theposition of applications software analyst/programmer as an L-1B nonimmigrant intracompany transferee withspecialized knowledge pursuant to section 101(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8U.S.C. § 1101(a)(l5)(L). The petitioner describes its business as being an "information technology consultingfirm." The petitioner seeks to employ the beneficiary for a period of two years.

The director denied the petition, concluding that the petitioner failed to establish that the beneficiary will beemployed in the United States in a capacity involving specialized knowledge.

On appeal, counsel for the petitioner asserts that the petitioner has satisfied the criteria for establishing thatthe beneficiary will be employed in the United States in a specialized knowledge capacity.

To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteriaoutlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed thebeneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for onecontinuous year within three years preceding the beneficiary's application for admission into the UnitedStates. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering hisor her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, orspecialized knowledge capacity.

The regulation at 8 C.F.R. § 214.2(1)(3) further states that an individual petition filed on Form 1-129 shall beaccompanied by:

(i) Evidence that the petitioner and the organization which employed or will employ thealien are qualifying organizations as defined in paragraph (1)(l)(ii)(G) of this section.

(ii) Evidence that the alien will be employed in an executive, managerial, or specializedknowledge capacity, including a detailed description of the services to be performed.

(iii) Evidence that the alien has at least one continuous year of full-time employmentabroad with a qualifying organization within the three years preceding the filing ofthe petition.

(iv) Evidence that the alien's prior year of employment abroad was in a position that wasmanagerial, executive or involved specialized knowledge and that the alien's prioreducation, training, and employment qualifies him/her to perform the intendedservices in the United States; however, the work in the United States need not be thesame work which the alien performed abroad.

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Section 214(c)(2)(B) of the Act, 8 U.S.C. § 1184(c)(2)(B), provides:

For purposes of section 101(a)(l5)(L), an alien is considered to be serving in a capacityinvolving specialized knowledge with respect to a company if the alien has a specialknowledge of the company product and its application in international markets or has anadvanced level of knowledge of processes and procedures of the company.

Furthermore, the regulation at 8 C.F.R. § 214.2(l)(l)(ii)(D) defines "specialized knowledge" as:

[S]pecial knowledge possessed by an individual of the petitioning organization's product,service, research, equipment, techniques, management or other interests and its application ininternational markets, or an advanced level of knowledge or expertise in the organization'sprocesses and procedures.

The primary issue in this proceeding is whether the petitioner has established that the beneficiary will beemployed in a capacity involving specialized knowledge. 8 C.F.R. § 214.2(l)(3)(ii).

The petitioner asserts that the beneficiary has specialized knowledge of the petitioning organization's SEI­CMM Level 5 assessed software development and maintenance process as it pertains to the design anddevelopment of software application systems across business applications and technology domains for clients.Generally, the SEI-CMM Level 5 assessed software development and maintenance process is described as aset of processes, procedures, or methodologies used by the petitioning organization in providing softwareproject services to its clients.

The petitioner described the beneficiary's proposed duties in the letter dated October 15,2001 as follows:

• Conduct Software Configuration Management activities as per SCM Plan establishedby Project Leader

• Perform changes to all configurable items as per [the petitioning organization's]Change Control Procedure, which is established by the Project Leader

• Ensure that all development, testing, implementation, etc. activities are done as perguidelines established in [the petitioning organization's] Quality Management System

• Ensure that all work done meets project operational process requirements andSoftware Project Plan as established by the Project Leader using Project PlanningGuidelines, Project Plan Template, Software Development Life Cycle Modelsdocument, Guidelines for Software Estimation, quality manual, etc., which are allavailable via [the petitioning organization's] PAL, BAL, IPMS, etc. web-basedsystems

• Participate in Final Inspections, which are conducted before software work items arereleased to client

• Prepare specifications for offshore development• Upload specifications for offshore development• Provide technical guidance to offshore resources as required

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• Participate in Defects Prevention Activities: Peer Reviews, Casual AnalysesSessions, Inspections, etc., as per IPMS, DP Checklist, guidelines for softwareproduct quality, project plan template, etc., of work product produced onsite andoffshore

• Participate in Quantitative Process Management as per QPM established by theProject Leader

• Participate in fortnightly Defects Prevention meetings, as well as on a need basis asrequired

• As may be required, participate with team to develop software process improvementsfor areas of concern

Finally, the petitioner described the beneficiary's purported training regimen in the letter dated October 15,2001 as follows:

[The beneficiary] participated in [the petitioning organization's] In-House Training Programwhere she was exposed to and acquired highly specialized knowledge of the company'sinternally developed, SEI-CMM assessed (Level 5) software development process.

On November 19, 2001, the director requested additional evidence. The director requested, inter alia, thefollowing: evidence establishing that the beneficiary's knowledge is uncommon, noteworthy, or distinguishedby some unusual quality and is not generally known by practitioners in the beneficiary's field of endeavor;evidence establishing that the beneficiary's advanced level of knowledge distinguishes her from those withonly elementary or basic knowledge; and evidence addressing the minimum amount of time required to train aperson to work in the proffered position.

In response, counsel submitted a letter dated February 4, 2002 in which he describes the beneficiary's trainingregimen and the ubiquity of the beneficiary's knowledge as follows:

[The petitioning organization] currently employs just over 19,000 IT professionals of whichapproximately 9,500 have received training in and possess experience with the company'sSEI-CMM (Level 5) software development and maintenance process [citation omitted]. Asthese facts suggest, not only is [the beneficiary's] knowledge advanced within the company,but, as demonstrated herein, such knowledge is also clearly advanced throughout the industry.[The beneficiary] was selected to participate in [the petitioning organization's] In-HouseTraining Program where she was exposed to and acquired significant knowledge of [thepetitioning organization's] internally designed and developed, SEI-CMM assessed (Level 5)software development and maintenance process including its full cycle software developmentmethodologies, software development and maintenance tools, and quality managementsystem. [The beneficiary] received a total of 144 hours of classroom training in this program.

Moreover, since completing her training, [the beneficiary] has been utilized in a specializedknowledge capacity on significant assignments involving the development and maintenanceof software application systems across a variety of environments and domains for [the

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petitioning organization] and its clients in India and in the United States.

* * *

More importantly, on these assignments, [the beneficiary] gained tremendous practicalexperience utilizing [the petitioning organization's] SEI-CMM Level 5 software developmentand maintenance process across. [sic] [The beneficiary's] training in and subsequentexperience utilizing [the petitioning organization's] software development and maintenanceprocess is not readily transferable to another individual and is indispensable to her employer'scompetitiveness in the marketplace.

Counsel further asserts that, while a comparable new employee would need to receive, at a minimum, 144hours of training in the petitioning organization's SEI-CMM Level 5 software development and maintenanceprocess to perform the beneficiary's duties, such an employee would still lack the beneficiary's "level ofpractical experience and knowledge."

On April 11, 2002, the director denied the petition. The director concluded that the petitioner failed toestablish that the beneficiary will be employed in a capacity involving specialized knowledge.

On appeal, counsel for the petitioner asserts that the petitioner has satisfied the criteria for establishing thatthe beneficiary will be employed in the United States in a specialized knowledge capacity.

Upon review, the petitioner's assertions are not persuasive in demonstrating that the beneficiary will beemployed in a position involving specialized knowledge as defined at 8 C.F.R. § 214.2(1)(1)(ii)(D) or that thebeneficiary possesses specialized knowledge. Beyond the decision of the director, the record is also notpersuasive in establishing that the beneficiary was employed abroad in a capacity involving specializedknowledge for the requisite one-year period.

In examining the specialized knowledge capacity of the beneficiary, the AAO will look to the petitioner'sdescription of the job duties. See 8 C.F.R. § 214.2(1)(3). The petitioner must submit a detailed jobdescription of the services to be performed sufficient to establish specialized knowledge. In this matter, thepetitioner fails to establish that this position requires an employee with specialized knowledge or that thebeneficiary has been employed in a specialized knowledge capacity for the requisite one-year period abroad.The petitioner also fails to establish that the beneficiary's knowledge is specialized.

Although the petitioner repeatedly asserts that the beneficiary's proposed position III the United Statesrequires specialized knowledge, that the beneficiary possesses specialized knowledge, and that the beneficiaryhas been employed abroad in a position involving specialized knowledge, the petitioner has not adequatelyarticulated any basis to support this claim. The petitioner has failed to identify any special or advanced bodyof knowledge which would distinguish the beneficiary's role from that of other similarly experiencedsoftware workers employed by the petitioning organization or in the industry at large. Going on recordwithout documentary evidence is not sufficient for purposes of meeting the burden of proof in theseproceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of

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California, 14 I&N Dec. 190 (Reg. Corom. 1972)). Specifics are clearly an important indication of whether abeneficiary's duties involve specialized knowledge; otherwise, meeting the definitions would simply be amatter of reiterating the regulations. See Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989),a!f'd, 905, F.2d 41 (2d. Cir. 1990).

The petitioner asserts that the beneficiary possesses specialized knowledge of the petitioning organization'sSEI-CMM Level 5 assessed software development and maintenance process as it pertains to the design anddevelopment of software application systems across business applications and technology domains for clients.The petitioner asserts that this knowledge is not commonly implemented nor utilized throughout the industryand that the beneficiary is one of only 9,500 employees, out of a total of 19,000, to have received the trainingwhich imparted this purported specialized knowledge. However, despite these assertions, the record does notestablish how, exactly, the SEI-CMM Level 5 assessed software development and maintenance process is somaterially different from similar software development and maintenance processes that a similarlyexperienced and educated software professional could not perform the duties of the position.

Overall, the record does not establish that the beneficiary's knowledge is substantially different from theknowledge possessed by software professionals generally throughout the industry or by other employees ofthe petitioning organization. The assertion that the beneficiary and a select group of workers possess a veryspecific set of skills related to the SEI-CMM Level 5 assessed software development and maintenanceprocess does not by itself establish that the beneficiary's knowledge is indeed uncommon or noteworthy.First, the mere claim that almost half of the petitioning organization's similarly employer workers possessesthe same purported "specialized knowledge" undermines counsel's claim that this knowledge is uncommon,noteworthy, or distinguished by some unusual quality and is not generally known by practitioners in thebeneficiary's field of endeavor. To the contrary, it is quite apparent that the beneficiary's knowledge is bothcommon and generally known by a large number of similarly employed workers.

Second, the petitioner has not established that the beneficiary's knowledge would be difficult to impart toanother similarly educated worker without suffering significant economic inconvenience. All employees canbe said to possess unique and unparalleled skill sets to some degree; however, a unique skill set that can beimparted to another similarly experienced and educated employee without significant economicinconvenience is not "specialized knowledge." Moreover, the proprietary or unique qualities of thepetitioner's process do not establish that any knowledge of this process is "specialized." Rather, the petitionermust establish that qualities of the unique or proprietary process require this employee to have knowledgebeyond what is common in the industry. This has not been established in this matter. The fact that otherprofessionals may not have very specific, proprietary knowledge regarding the petitioner's process is notrelevant to these proceedings if this knowledge gap could be closed by the petitioner by simply revealing theinformation to a newly hired, similarly educated or experienced employee.

Furthermore, while the petitioner asserts that the beneficiary received training which imparted the claimedspecialized knowledge to her, the record is devoid of evidence addressing the length or substance of thistraining. The petitioner only vaguely described the purported training, which, apparently, is provided inwhole or in part to thousands of similarly employed workers. Absent detailed information addressing thelength and substance of the training and its availability to the petitioning organization's workforce, it is

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impossible to conclude that the purported specialized knowledge would be significantly economicallyinconvenient to impart to similar workers. Once again, going on record without documentary evidence is notsufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. at165 (citing Matter ofTreasure Craft ofCalifornia, 14 I&N Dec. 190).

Finally, and for the same reasons articulated above, the petitioner has failed to establish that the beneficiaryhas specialized knowledge or that she was employed abroad in a capacity involving specialized knowledge.Beyond the decision of the director, the petition will be denied for these additional reasons. 8 C.F.R. §214.2(l)(3)(iv).

The AAO does not dispute the possibility that the beneficiary is a skilled and experienced employee who hasbeen, and would be, a valuable asset to the petitioner. However, it is appropriate for the AAO to look beyondthe stated job duties and consider the importance of the beneficiary's knowledge of the business's product orservice, management operations, or decision-making process. Matter of Colley, 18 I&N Dec. 117, 120(Comm. 1981) (citing Matter of Raulin, 13 I&N Dec. 618(R.C. 1970) and Matter ofLeBlanc, 13 I&N Dec.816 (R.C. 1971)). As stated by the Commissioner in Matter of Penner, when considering whether thebeneficiaries possessed specialized knowledge, "the LeBlanc and Raulin decisions did not find that theoccupations inherently qualified the beneficiaries for the classifications sought." 18 I&N Dec. at 52. Rather,the beneficiaries were considered to have unusual duties, skills, or knowledge beyond that of a skilled worker.Id. The Commissioner also provided the following clarification:

A distinction can be made between a person whose skills and knowledge enable him or her toproduce a product through physical or skilled labor and the person who is employed primarilyfor his ability to carry out a key process or function which is important or essential to thebusiness firm's operation.

Id. at 53.

It should be noted that the statutory definition of specialized knowledge requires the AAO to makecomparisons in order to determine what constitutes specialized knowledge. The term "'specialized knowledge"is not an absolute concept and cannot be clearly defined. As observed in 1756, Inc. v. Attorney General,"'[s]imply put, specialized knowledge is a relative ... idea which cannot have a plain meaning." 745 F. Supp.9, 15 (D.D.C. 1990). The Congressional record specifically states that the L-l category was intended for "keypersonnel." See generally, H.R. REP. No. 91-851, 1970 U.S.C.C.A.N. 2750. The term "key personnel"denotes a position within the petitioning company that is "of crucial importance." Webster's II New CollegeDictionary 605 (Houghton Mifflin Co. 2001). In general, all employees can reasonably be considered"important" to a petitioner's enterprise. If an employee did not contribute to the overall economic success ofan enterprise, there would be no rational economic reason to employ that person. An employee of "crucialimportance" or "key personnel" must rise above the level of the petitioner's average employee. Accordingly,based on the definition of "'specialized knowledge" and the congressional record related to that term, the AAOmust make comparisons not only between the claimed specialized knowledge employee and the general labormarket, but also between the employee and the remainder of the petitioner's workforce. While it may becorrect to say that the beneficiary in the instant case is a highly skilled and productive employee, this fact

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alone is not enough to bring the beneficiary to the level of '"key personnel."

Moreover, in Matter ofPenner, the Commissioner discussed the legislative intent behind the creation of thespecialized knowledge category. 18 I&N Dec. 49 (Comm. 1982). The decision noted that the 1970 HouseReport, H.R. REP. No. 91-851, stated that the number of admissions under the L-l classification '"will not belarge" and that "[t]he class of persons eligible for such nonimmigrant visas is narrowly drawn and will becarefully regulated by the Immigration and Naturalization Service." Id. at 51. The decision further noted thatthe House Report was silent on the subject of specialized knowledge, but that during the course of the sub­committee hearings on the bill, the Chairman specifically questioned witnesses on the level of skill necessaryto qualify under the proposed '"L" category. In response to the Chairman's questions, various witnessesresponded that they understood the legislation would allow '"high-level people," '"experts," individuals with"unique" skills, and that it would not include '"lower categories" of workers or '"skilled craft workers." MatterofPenner, 18 I&N at 50 (citing H.R. Subcomm. No. 1 of the Jud. Comm., Immigration Act of 1970: Hearingson H.R. 445, 91 st Congo 210, 218, 223, 240, 248 (November 12,1969)).

Reviewing the Congressional record, the Commissioner concluded in Matter of Penner that an expansivereading of the specialized knowledge provision, such that it would include skilled workers and technicians, isnot warranted. The Commissioner emphasized that the specialized knowledge worker classification was notintended for '"all employees with any level of specialized knowledge." Matter ofPenner, 18 I&N Dec. at 53.Or, as noted in Matter of Colley, "[m]ost employees today are specialists and have been trained and givenspecialized knowledge. However, in view of the House Report, it can not be concluded that all employeeswith specialized knowledge or performing highly technical duties are eligible for classification asintracompany transferees." 18 I&N Dec. at 119. According to Matter ofPenner, "[s]uch a conclusion wouldpermit extremely large numbers of persons to qualify for the 'L-l' visa" rather than the "key personnel" thatCongress specifically intended. 18 I&N Dec. at 53; see also 1756, Inc. v. Attorney General, 745 F. Supp. at15 (concluding that Congress did not intend for the specialized knowledge capacity to extend to all employeeswith specialized knowledge, but rather to '"key personnel" and "executives.")

A 1994 Immigration and Naturalization Service (now Citizenship and Immigration Services (CIS))memorandum written by the then Acting Executive Associate Commissioner also directs CIS to compare thebeneficiary's knowledge to the general United States labor market and the petitioner's workforce in order todistinguish between specialized and general knowledge. The Executive Associate Commissioner notes in thememorandum that "officers adjudicating petitions involving specialized knowledge must ensure that theknowledge possessed by the beneficiary is not general knowledge held commonly throughout the industry butthat it is truly specialized." Memorandum from James A. Puleo, Acting Executive Associate Commissioner,Immigration and Naturalization Service, Interpretation of Specialized Knowledge, CO 214L-P (March 9,1994). A comparison of the beneficiary's knowledge to the knowledge possessed by others in the field istherefore necessary in order to determine the level of the beneficiary's skills and knowledge and to ascertainwhether the beneficiary's knowledge is advanced. In other words, absent an outside group to which tocompare the beneficiary's knowledge, CIS would not be able to "ensure that the knowledge possessed by thebeneficiary is truly specialized." Id. The analysis for specialized knowledge therefore requires a test of theknowledge possessed by the United States labor market, but does not consider whether workers are availablein the United States to perform the beneficiary's job duties.

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As explained above, the record does not distinguish the beneficiary's knowledge as more advanced than theknowledge possessed by other people employed by the petitioning organization or by software professionalsemployed elsewhere. As the petitioner has failed to document any materially unique qualities to thebeneficiary's knowledge, the petitioner's claims are not persuasive in establishing that the beneficiary, whileperhaps highly skilled, would be a "key" employee. There is no indication that the beneficiary has anyknowledge that exceeds that of any other similarly experienced professional or that she has received specialtraining in the company's methodologies or processes which would separate her from other professionalsemployed with the foreign entity or elsewhere. It is simply not reasonable to classify this employee as a keyemployee of crucial importance to the organization.

The legislative history of the term "specialized knowledge" provides ample support for a restrIctIveinterpretation of the term. In the present matter, the petitioner has not demonstrated that the beneficiaryshould be considered a member of the "narrowly drawn" class of individuals possessing specializedknowledge. See 1756, Inc. v. Attorney General, 745 F. Supp. at 16. Based on the evidence presented, it isconcluded that the beneficiary will not be employed in the United States, and was not employed abroad, in acapacity involving specialized knowledge. For these reasons, the appeal will be dismissed.

An application or petition that fails to comply with the technical requirements of the law may be denied bythe AAO even if the Service Center does not identify all of the grounds for denial in the initial decision. SeeSpencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), ajJ'd, 345 F.3d 683(9th CiT. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989) (noting that the AAO reviewsappeals on a de novo basis).

The petition will be denied for the above stated reasons, with each considered as an independent andalternative basis for denial. When the AAO denies a petition on multiple alternative grounds, a plaintiff cansucceed on a challenge only if it is shown that the AAO abused its discretion with respect to all of the AAO'senumerated grounds. See Spencer Enterprises, Inc., 229 F. Supp. 2d at 1043.

In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with thepetitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met. Accordingly, theappeal will be dismissed.

ORDER: The appeal is dismissed.